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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This unfair labor practice case is before the Authority on exceptions
to the attached decision of the Administrative Law Judge filed by the General
Counsel. The Respondents(1) did not file an opposition to the exceptions.

The complaint alleges that the Respondents failed to comply with their
duty under section 7114(a)(1) of the Federal Service Labor-Management Relations
Statute (the Statute) to represent all employees without discrimination and
without regard to labor organization membership, in violation of section
7116(b)(1) and (8) of the Statute, when they withdrew a grievance from
arbitration because the grievant failed to pay dues and maintain his AFGE
membership. The complaint further alleges that the Respondents committed an
independent violation of section 7116(b)(1) by sending the grievant a letter
indicating that the arbitration of his grievance would be terminated unless he
paid all of his back dues.

The Judge found that the Respondents did not violate section 7116(b)(1)
and (8) by withdrawing the grievance from arbitration.(2) For the reasons that follow, we
deny the General Counsel's exceptions and dismiss the complaint regarding the
alleged violation of section 7116(b)(1) and (8).

II. Background and Judge's Decision

The background is fully set out in the Judge's decision. As pertinent
here, in March 1993, the Agency removed the grievant from his position for
committing certain offenses. Although the grievant admitted the offenses for
which he was removed, he contested whether removal was the appropriate penalty.
The Local Union filed a grievance on his behalf and invoked arbitration.
Because the grievant was no longer employed, his AFGE membership dues ceased to
be paid through payroll deduction.

In January 1994, the National Union placed the Local Union in
trusteeship, removed its officers, and appointed a National Vice-President
(NVP) as trustee. The NVP returned the Local Union's Treasurer to office. The
NVP believed it was AFGE policy to require members who paid their dues directly
to the Union to pay dues for a year in advance, and directed the Treasurer to
maintain that policy. The NVP also ordered that any communication from the
Local Union's office be cleared by him.

The NVP assigned a National Representative (the Representative) to
handle the arbitration regarding the grievant's removal. The grievant discussed
his case with the NVP and the Representative in early 1994 and the grievant
agreed to meet with the Representative again the day before the date on which
the arbitration hearing was scheduled.

According to testimony credited by the Judge, the Treasurer phoned the
grievant in early 1994, and told him that, pursuant to the NVP's instructions,
he had to pay the full amount of the AFGE membership dues. See Judge's
Decision at 3. The Treasurer, without the consent of the NVP, told the
grievant that the arbitration would be canceled if his dues were not paid. On
May 27, the Treasurer sent the grievant a letter stating that he had to remit
his dues on an annual basis, and that $236 was due to preclude any potential
termination of the arbitration case. The Treasurer testified that she sent the
letter without the NVP's authorization and the NVP testified that he had
nothing to do with, and was not aware of, the letter. Seeid.
at 4.

A week or two before the scheduled arbitration hearing, the parties
were unsuccessful in using mediation to settle the grievance. The
Representative testified that at the mediation session, management discussed a
videotape showing the grievant committing the offenses for which he was
removed. Seeid. The Representative stated that the mediator
shared with him observations about the case. The Representative also testified
that, after the mediation, he viewed the videotape, which he had misplaced
earlier, that substantiated the Agency's characterization of the offenses.
Seeid. The Representative discussed his findings with the NVP,
who left it to the Representative to decide whether to proceed to
arbitration.

Shortly before the arbitration hearing date, the Representative decided
not to pursue the case because he believed that the grievant's case had no
merit and would not have been successful. The Representative also stated that
the grievant, during their interviews, had appeared "cocky and not remorseful,"
thus detracting from his credibility as a witness. Id. The
Representative also testified that the mediator's private comments to him were
"a big consideration." Id. at 5. On June 13, the
Representative informed the grievant of the decision not to proceed to the
arbitration hearing, which was scheduled for the following day. The grievant
then filed an unfair labor practice charge against the Respondents and the
General Counsel issued a complaint alleging that the arbitration was canceled
because the grievant failed to pay dues and maintain his AFGE membership.

The Judge applied the framework set forth in Letterkenny Army
Depot, 35 FLRA 113 (1990) (Letterkenny) and found that the
Respondents did not violate section 7116(b)(1) and (8) of the Statute regarding
the withdrawal of the grievance from arbitration. In particular, the Judge
found that the General Counsel had not established a primafacie
case that the Respondents violated their duty under section 7114(a)(1) of the
Statute. Additionally, the Judge credited the Respondents' defense that the
grievance was meritless, and concluded that the Respondents had not violated
section 7116(b)(1) and (8) of the Statute.

III. General Counsel's Exceptions

The General Counsel does not specifically address whether the Authority
should apply the Letterkenny framework in cases of alleged
discrimination by a labor organization. According to the General Counsel, the
Authority has not previously applied this framework in such cases, although it
used a similar framework in earlier cases, including American Federation of
Government Employees, Local 1920, AFL-CIO, 16 FLRA 464 (1984)
(AFGE Local 1920). However, if the Letterkenny framework is
applied, the General Counsel disagrees with the Judge's conclusion that the
General Counsel failed to make a primafacie showing on the
alleged violation of section 7116(b)(1) and (8).

The General Counsel also excepts to the Judge's failure to correct the
record in two respects. Specifically, the General Counsel excepts to the
Judge's failure to name the date on which the mediation session was
held--May 31, 1994. According to the General Counsel, that date is
important because it relates to a sequence of events, the timing of which
establishes the Respondents' violation of the Statute. Secondly, the General
Counsel asserts that the Judge erred in stating that the Agency had refused to
give a copy of the videotape to the Respondents. According to the General
Counsel, the Agency gave the Respondents a copy of the videotape, but declined
to provide the Representative a second copy. The General Counsel asserts that
the Judge erred in stating that the Agency had provided the Representative with
another copy. The General Counsel contends that the Representative's claim that
he reviewed the videotape was pretextual because he never substantiated that he
reviewed the videotape. The General Counsel argues that the Representative's
viewing of the videotape "could not have contributed to his decision to
withdraw from arbitration." Exceptions at 12.(3) According to the General Counsel, the Judge's failure to
correct the record in these two respects "obviously contributed to his faulty
conclusion that the [Respondents] adequately explained the timing of its
last-minute withdrawal from arbitration." Id. at 13.

Finally, the General Counsel excepts to the Judge's refusal to consider
any evidence concerning the Respondents' dues payment policy and the grievant's
payment of dues. According to the General Counsel, this information is
important because the Respondents' change in policy occurred just before the
scheduled arbitration and would have applied only to the grievant.

IV. Analysis and Conclusions

A. The "Letterkenny" Framework Applies in Cases of Alleged
Discrimination by a Labor Organization

This case involves an allegation that the Respondents violated section
7114(a)(1) by failing to represent the employee without regard to his AFGE
membership status, when they canceled his arbitration hearing. The Respondents
defended their action on the ground that the action was not based on his lack
of AFGE membership, but rather on the ground that the grievant's case had no
merit and the grievant would not have been successful at arbitration.

The Judge applied the framework set forth in Letterkenny, which
establishes a "two-step burden shifting framework" for resolving alleged
discrimination or retaliation by a respondent against an employee for engaging
in union-related protected activity. SeeMidder v. FLRA,
No. 96-60371 (5th Cir. 1997), affirmingBureau of Engraving and
Printing, Western Currency Facility, Fort Worth, Texas, 51 FLRA 1014
(1996) (Midder), slip op. at 5. Under the Letterkenny
framework, the General Counsel must initially establish that the employee was
engaged in protected activity and that the activity was a motivating factor in
the treatment of the employee. Thereafter, a respondent may seek to establish
an affirmative defense that there was a legitimate justification for its action
and that the same actions would have been taken even in the absence of the
protected activity. SeePension Benefit Guaranty Corporation,
52 FLRA 1390, 1400-01 (1997), petition for review filed,
No. 97-1414 (D.C. Cir. June 27, 1997); Department of the Air
Force, Warner Robins Air Logistics Center, Warner Robins Air Force Base,
Georgia, 52 FLRA 602, 605 (1996); Federal Emergency Management
Agency, 52 FLRA 486, 490 & n.2 (1996) (the Authority clarified the
primafacie case that the General Counsel must establish);
Letterkenny, 35 FLRA at 118.

The Authority has applied the Letterkenny framework in cases
involving labor organization respondents. SeeAmerican Federation of
Government Employees, Local 1857, 44 FLRA 959 (1992) (the judge
applied the Letterkenny framework to the facts of the case and the
Authority adopted the judge's decision to apply Letterkenny, without
explanation). SeealsoAFGE Local 1920, 16 FLRA
at 474-76 (the Authority applied the predecessor test for resolving dual
motive cases, similar to and consistent with Letterkenny, that had been
set forth in Internal Revenue Service, Washington, D.C., 6 FLRA 96,
99 (1981) (IRS)). The National Labor Relations Board (NLRB) also applies
the same framework to cases against labor organizations that it applies to
cases against employers. SeeAshley, Hickham-Uhr Co.,
210 NLRB 32 (1974); 1 The Developing Labor Law 79-80, (3d ed.
1992). SeealsoInternational Longshoremen's Association,
Local 20, AFL-CIO, 323 NLRB No. 190 (1997); Millwrights
Local No. 1102, 322 NLRB 198, 203 (1996).

For the reasons discussed in Wright Line and IRS,
application of a burden-shifting framework, such as that in Letterkenny,
in cases of alleged union discrimination against employees is warranted. This
framework allows consideration of legitimate motives in cases involving alleged
union discrimination against employees. In our view, it is appropriate to apply
a Letterkenny framework in this type of case to ensure: (1) fair
and equitable treatment of unions and agencies in similar cases; and
(2) the ability of a union to raise legitimate motives in its defense, if
charged with discriminatory action by an employee. Cf.Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S. 274 (1977)
(the Court affirmed the NLRB's adoption of a burden-shifting framework for dual
motive cases in which the NLRB stated that the test accommodates the legitimate
competing interests inherent in dual motivation cases, while at the same time
serving to effectuate the purposes and policies of the National Labor Relations
Act).

For the reasons set forth above, we will continue to apply the
Letterkenny framework to cases involving labor organization respondents.

B. The Letterkenny Framework Was Applied Properly in This
Case

Applying the Letterkenny framework, the Judge concluded that the
General Counsel did not establish a primafacie case. The Judge
determined that although the grievant exercised "his right to refrain from
assisting" the Local Union, the General Counsel did not establish that this
activity was a motivating factor in the Respondents' treatment of the grievant.
See Judge's Decision at 8. In arriving at this conclusion, the
Judge considered the credibility of the witnesses and their testimony. The
demeanor of witnesses is an important factor in resolving issues of credibility
and only the Judge has had the benefit of observing the witnesses while they
testified. Therefore, the Authority will not overrule a judge's credibility
determinations unless a clear preponderance of all relevant evidence
demonstrates that they were incorrect. SeeU.S. Department of
Veterans Affairs, Medical Center, Northampton, Massachusetts, 51 FLRA
1520, 1520-21 (1996). The record has been examined and there is no basis to
overrule the Judge's credibility determinations. Based on these determinations,
we agree with the Judge that the General Counsel did not establish a
primafacie case, and we find that the Judge properly determined
that the Respondents had not violated the Statute as alleged.

The General Counsel also excepts on the ground that the Judge failed to
correct the record to state the date of the mediation session and the source of
the Representative's copy of the videotape. However, the General Counsel has
not established how these corrections would affect the primafacie case. Specifically, the General Counsel has not demonstrated how
information as to the exact date on which the mediation session was held is
relevant to the establishment of a primafacie case. At the
hearing, an Agency witness testified that the mediation session was held on
May 31, 1994, (Tr. at 157), while the Respondents' Representative
testified that it was held 1 week later, on June 6, 1994 (Tr.
at 119, 134, 148). The General Counsel did not introduce any documentary
evidence to substantiate the date of the mediation session. Using either date,
the mediation session was held within 2 weeks of the scheduled
arbitration. The General Counsel fails to demonstrate how the 1-week difference
in dates is significant.

With respect to the source of the videotape, clarifying how the
Representative obtained a copy of the videotape does not alter the fact that it
showed the grievant committing the offenses for which he was removed. The tape
was discussed at the mediation session. The Representative stated, without
contradiction, that he reviewed the tape after the mediation session and that
his review confirmed that the grievant committed the offenses. See
Judge's Decision at 4. As the Judge stated, the General Counsel had the
opportunity to cross-examine the Representative regarding the information he
relied on to make his decision, including his review of the videotape, but did
not do so. Seeid. at 8. The General Counsel has not
demonstrated how the requested clarification would affect the primafacie case.

The General Counsel also excepts to the Judge's refusal to admit
evidence concerning the Respondents' dues payment policy and the grievant's
payment of dues. A review of the hearing transcript reveals testimony and
exhibits regarding the dues payment policy and the grievant's payment of dues.
See Tr. at 39-41, 44, 59, 103, 108; General Counsel's Exhibits 9, 10,
18, and 20. The Judge discussed the General Counsel's arguments about the dues
payment policy and found:

I am not persuaded that [the NVP] devised the new dues payment policy
to 'squeeze as much money as possible' from [the grievant]. The obvious risks
of carrying through such a plot . . . so far outbalance the
meager financial benefit to the [Respondents] that I do not believe the dues
policy was so motivated.

Judge's Decision at 7.

It is well established that the determination of the matters to be
admitted into evidence is within the discretion of an Administrative Law Judge
under section 2423.31(b) (previously section 2423.19(g)) of the Authority's
Regulations.(5)SeeArmy and Air Force
Exchange Service, Waco Distribution Center, Waco, Texas, 53 FLRA 749,
762-63 (1997); Portsmouth Naval Shipyard, Portsmouth, New Hampshire,
49 FLRA 1522, 1531 (1994) and cases cited therein. Even assuming that the
Judge erred in refusing to admit evidence concerning the dues payment policy,
the General Counsel has not demonstrated how such an error would have affected
the primafacie case.

C. Summary

For the above stated reasons, we find that the Judge properly applied
the framework set forth in Letterkenny to the facts in this case. We
find, in agreement with the Judge, that the Respondents did not violate section
7116(b)(1) and (8) of the Statute when they canceled the grievant's arbitration
hearing, and the complaint is dismissed as to this contention.

V. Order

Pursuant to section 2423.41 of the Authority's Regulations and section
7118 of the Federal Service Labor-Management Relations Statute, the American
Federation of Government Employees, Local 1345, Fort Carson, Colorado (in
Trusteeship), and the American Federation of Government Employees, AFL-CIO,
shall:

1. Cease and desist from:

(a) Stating or implying that failure to pay dues or maintain union
membership will be a factor in determining whether arbitration of an employee's
grievance will proceed.

(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:

(a) Post at their respective business offices, in normal meeting
places, and at all other places where noticed to members and bargaining unit
employees at Fort Carson, Colorado, are customarily posted, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed on behalf of the
American Federation of Government Employees, Local 1345, by its Trustee,
and on behalf of the American Federation of Government Employees, AFL-CIO, by
its National Vice President, 13th District, and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any other material.

(b) Submit appropriate signed copies of such notices to the Commanding
Officer of Fort Carson for posting in conspicuous places where unit employees
are located, where they shall be maintained for a period of 60 consecutive
days from the date of posting.

(c) Pursuant to section 2423.41(e) of the Authority's Regulations,
notify the Regional Director of the Denver Region, 1244 Speer Boulevard,
Suite 100, Denver, Colorado 80204-3581, in writing, within 30 days
from the date of this Order, as to what steps have been taken to comply.

The remaining portion of the complaint concerning the cancellation of
the grievant's arbitration hearing is dismissed.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the American
Federation of Government Employees, Local 1345, Fort Carson, Colorado (in
Trusteeship), and the American Federation of Government Employees, AFL-CIO,
have violated the Federal Service Labor-Management Relations Statute and has
ordered us to post and abide by this Notice.

We hereby notify our members and bargaining unit employees that:

WE WILL NOT state or imply that failure to pay dues or maintain Union
membership will be a factor in determining whether arbitration of an employee's
grievance will proceed.

WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.

American Federation of Government Employees, Local 1345

____________________________(Union)

Dated:____________ By:________________________________

(Signature)
(Title)

American Federation of Government Employees, AFL-CIO
_____________________________(Union)

Dated:____________ By:________________________________

(Signature)
(Title)

This Notice must remain posted for 60 consecutive days from the date of
posting, and must not be altered, defaced, or covered by any other
material.

If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional Director,
Denver Region, 1244 Speer Boulevard, Suite 100, Denver, Colorado, 80204-3581,
and whose telephone number is: (303) 844-5224.

Timothy Sullivan, Esquire Matthew Jarvinen, Esquire For the
General Counsel

Alexia McCaskill, Esquire For the Respondents

Before: JESSE ETELSON Administrative Law Judge

DECISION

The Respondent Unions withdrew an employee's grievance on the eve of
its scheduled hearing before an arbitrator. An unfair labor practice complaint
alleges that American Federation of Government Employees, Local 1345, Fort
Carson, Colorado, and American Federation of Government Employees, 13th
District, Lakewood, Colorado, withdrew the grievance because the employee
failed to pay dues and maintain his union membership. Such withdrawal, it is
alleged, constituted a failure to comply with the unions' duty under section
7114(a)(1) of the Federal Service Labor-Management Relations Statute (the
Statute) to represent all employees "without discrimination and without regard
to labor organization membership." By virtue of this alleged failure, the
complaint further alleges that the Respondent Unions violated sections
7116(b)(1) and (8) of the Statute. The complaint also alleges an independent
violation of section 7116(b)(1)--interfering with an employee's right to
refrain from joining a labor organization--by the Respondent Unions' sending
the employee a letter indicating that the arbitration of his grievance would be
terminated unless he paid all of his back dues.

In their answer, the Unions deny that the withdrawal of the grievance
was motivated by the employee's failure to pay dues or maintain membership.
They also dispute the complaint's characterization of the letter to the
employee, deny that the letter was authorized by a responsible Union official,
and deny that they committed any unfair labor practices.

A hearing was held in Denver, Colorado. Counsel filed post-hearing
briefs. Counsel for the Respondents requests that the complaint be dismissed as
to Respondent American Federation of Government Employees, 13th District.
Counsel represents that 13th District is not a labor organization but "purely
an administrative office of AFGE National." Upon that representation, I find
that American Federation of Government Employees, AFL-CIO (AFGE) and American
Federation of Government Employees, Local 1345, are the proper Respondents. If
13th District is nothing but an administrative office of AFGE, service of the
charge on 13th District and of the complaint on 13th District and AFGE gave
AFGE adequate notice of the alleged unfair labor practices. The alleged unfair
labor practices of 13th District were the acts of AFGE through its
"administrative office." Therefore I order that AFGE is substituted for 13th
District.

Edward Vasquez was an employee of the United States
Army at Fort Carson, Colorado, and a member of Local 1345, the exclusive
representative of a unit of Fort Carson employees. Vasquez's Local 1345 dues
were deducted from his pay. On March 5, the Army issued a "Decision on Letter
of Proposed Removal," which constituted a removal action against Vasquez,
effective March 27, 1993. Vasquez had no previous disciplinary record and had
received "Exceptional" performance ratings on his two most recent appraisals.
Local 1345 filed a grievance on his behalf and processed it to the arbitration
stage, where the Army asserted that the grievance was not arbitrable because
the Union was late in invoking arbitration. The grievance was submitted to the
arbitrator on that threshold issue. In December 1993 the arbitrator issued a
decision in Local 1345's favor, permitting arbitration on the merits to
proceed. Meanwhile, Vasquez having lost his job, Local 1345 was no longer
receiving dues for him from payroll deductions. It is not clear whether he made
any direct dues payments during 1993. Nor is it clear on what periodic basis
dues were collected in 1993 from members who did not pay through payroll
deduction.(3)

In January 1994 AFGE placed Local 1345 in trusteeship and appointed as
trustee National Vice President Donald Solano. Solano testified that he
believed it was AFGE policy to require "direct dues" (those not paid by payroll
deduction) to be paid for a year in advance, and directed Local 1345 Treasurer
Virginia Medina to maintain that policy.(4) According to Solano, he also imposed a policy, of which he
informed Medina, that any communication from the Local's office, either oral or
in writing, was to be cleared by him.

Solano assigned National Representative Patrick O'Connor to handle the
Vasquez arbitration, replacing the national and local officials who had
processed the grievance up to that point. Vasquez discussed the grievance with
both Solano and O'Connor in early 1994. The nature of the grievance was an
attempt to ameliorate the discipline imposed, as Vasquez had admitted the
offenses for which he was removed.

In late January or early February 1994, Medina phoned Vasquez and told
him that, pursuant to Solano's instructions, Vasquez, as a member not on
payroll dues deduction, had to pay the "full amount of union dues."(5) Vasquez told Medina that he was
not working, but would try to pay something every week or two. He went to the
Local 1345 office on February 18, 1994, gave Medina $30 toward his dues, and
told her he would try to pay more as soon as he could.

In March, the representatives of the parties to the Vasquez grievance
selected a new arbitrator to hear the grievance on the merits, and Vasquez was
so advised. He gave Medina a dues payment of $20 on April 15. Somewhere in that
general time frame he was informed that the arbitration hearing was scheduled
for May 13 or 14.

At this point a factual dispute appears. Vasquez testified that, on
learning of the arbitration date, he went to the union office to talk to
O'Connor about the case. O'Connor was not there, and Vasquez spoke with Medina,
who reminded him that he had not paid his dues for awhile. She then told him,
according to Vasquez, that Solano had called her and said that if Vasquez did
not pay the "full amount" of his dues his arbitration would be "terminated."
Medina also said, according to Vasquez, that Solano had told her to so inform
Vasquez. She also said that Vasquez would be getting a letter concerning this.
Medina testified that she did not discuss the arbitration with Vasquez. Solano
denied that he gave Medina the instructions that, in Vasquez' account, Medina
attributed to him.

Vasquez apparently paid no further dues. He called the union office two
or three weeks before the scheduled arbitration hearing and asked to speak to
O'Connor about his case. O'Connor told Vasquez that the hearing had been
rescheduled to June 14. They arranged to meet on June 13 for final preparation.
Meanwhile, on May 27, Medina sent Vasquez the following letter:

Dear Mr. Vasquez,

According to our records, you are currently a "direct pay" Union
member. Under Mr. Solano's direction, Direct Pay members must remit Union
dues on an annualbasis; $11.00 x 26 pay periods =
$286.00.

Therefore, a total amount of $236.00 (this amount includes deduction
of $50.00 already paid), must be remitted to AFGE Local 1345 within 15
days to preclude any potential termination of your arbitration
case.

Questions concerning the above matter may be directed to the
undersigned.

[signature]

Virginia Medina

Treasurer

AFGE Local 1345

Medina testified that she sent the letter without authorization or
clearance from Solano or O'Connor. She also sent a letter to another "direct
pay" member, giving him or her a 15-day deadline to pay for the balance of the
year.(6) Medina testified that in
Vasquez' case she, knowing about the arbitration case, decided on her own to
"put that in" the letter to get him to pay. Solano also testified that he had
nothing to do with, and had not been aware of, the letter.

A week or two before the scheduled June 14 arbitration hearing, on the
suggestion of a management representative, O'Connor and management entered into
grievance mediation with a mediator from the Federal Mediation and Conciliation
Service. Their mediation session lasted 2 to 3 hours. Each side presented its
case and met privately with the mediator. The grievance was not settled.

O'Connor testified that after this session he looked at a videotape
showing Vasquez engaged in the course of conduct for which he was removed.
Management had discussed this tape at the mediation session. The tape showed a
progression of events that, in O'Connor's view, substantiated management's
characterization of the offenses. The Union had been provided with a copy of
the tape earlier, but, according to O'Connor, it had been misplaced and he had
not had the opportunity to view it until the agency provided him with another
copy after the mediation session. At some point after the mediation session,
O'Connor testified, he discussed the matter with Solano, who left with O'Connor
the final authority for deciding whether to proceed with the arbitration.

Although Vasquez had admitted his offenses, O'Connor, in preparing the
case, had been searching for weaknesses in the agency's case, such as defects
in its specifications of the offense or its consideration of the
Douglas [v. Veterans Administration, 5 MSPR 280 (1981)]
factors. Shortly before the hearing date O'Connor decided not to pursue the
case. He testified that his decision was based on his belief that the
grievant's case had no merit and would not have been successful. O'Connor
testified further that Vasquez, during their interviews, seemed cocky and not
remorseful, thus detracting from his credibility if called as a witness.(7) Finally, the mediator's private
comments to O'Connor were "a big consideration."(8)

O'Connor informed Vasquez of his decision on June 13, when they met
pursuant to their previous arrangement. O'Connor described to Vasquez the
mediation session and his own evaluation of the merits. He told Vasquez that
management continued to offer him the opportunity to resign instead of having a
dismissal on his employment record. Vasquez declined that offer, as he had
previously. O'Connor documented the substance of their June 13 meeting with a
letter to Vasquez, stating, in pertinent part:

A review of all the evidence plus the input from a Federal Mediator
of the Federal Mediation and Conciliation Service leads us to the conclusion
that your case is without merit, therefore we have cancelled the
hearing.

Credibility and Inferences

The parties agree that the basic framework for analysis of this case is
to be found in Letterkenny Army Depot, 35 FLRA 113 (1990), where, at
118, the Authority articulated the requirements for making a prima facie
showing in all cases of alleged discrimination. Thus, the General Counsel must
establish that:

(1) the employee against whom the alleged discriminatory action was
taken was engaged in protected activity; and

(2) such activity was a motivating factor in the . . . treatment of
the employee. . . .

Medina's letter suggests a connection between paying dues and
proceeding to arbitration. The letter was timed so that its 15-day deadline for
Vasquez to pay his dues expired just before the decision to drop the
arbitration was communicated to him. This circumstantial evidence presents at
least a ground for suspicion that Vasquez' failure to pay the balance of his
dues was a motivating factor in the Union's decision. As support for that
suspicion, we have Vasquez' disputed testimony that Medina also told him that
Solano instructed her to tell Vasquez that his failure to pay would result in
"terminating" his arbitration.

One must be wary of putting the cart before the horse. However, it
would be difficult to assess the credibility of Vasquez' account without
examining the substance of the Unions' defense, namely, that the decision to
drop the arbitration was based on the unlikelihood of success. That is, while
the asserted statement by Medina would constitute an admission attributable to
the Unions, it is unlikely that such an admission actually was made unless
Medina did in fact receive such instructions from Solano. Further (at the risk
of belaboring the obvious), Solano is not likely to have given her such
instructions unless he meant it and intended to act accordingly.

In evaluating the probabilities of what actually occurred here, I
cannot fail to consider the background of the key individuals involved and the
nature of the alleged violation. First, Solano, at whose door the alleged
discriminatory decision is laid, is a seasoned labor relations professional,
employed by AFGE (not by Local 1345 or by the employer agency) and appointed as
trustee to rescue Local 1345 from what AFGE regarded as its mismanagement.
Because of his background, I infer that Solano was aware of the fiduciary
nature of his position as a trustee and the prospect that his conduct might
well be scrutinized, by employees and perhaps by management, more closely than
the conduct of locally-elected officials. Solano can also be expected to have
realized that an instruction to be relayed directly to an employee in Vasquez'
circumstances, specifically making dues payment a condition of continuing to
represent him, would constitute a blatant violation of the Unions' statutory
duty. Presenting such a linkage to an affected employee, might, of course, be
an effective method of coercing dues payments. However, from Solano's vantage
point, it would also have the easily foreseeable effect of eliciting an unfair
labor practice charge and, not incidentally, providing incriminating
evidence.

O'Connor is also an experienced labor relations professional, employed
by the national AFGE union and familiar with the special responsibilities of
trusteeship. He presented a plausible explanation for the decision, for which
he accepted responsibility, to refuse to proceed with the arbitration. While
Counsel for the General Counsel rely heavily on the timing of the decision, the
legitimacy of the timing was adequately explained. O'Connor's participation in
mediation of the grievance is undisputed despite some uncertainty as to whether
it occurred one or two weeks before the scheduled arbitration hearing. Nor do I
find any substantial basis to question O'Connor's testimony that he examined
the videotape of Vasquez after its contents were discussed during the mediation
session, and that he considered how it might influence the arbitrator. The
parties' presentation of the substance of their cases before the mediator also
gave O'Connor the opportunity to evaluate the Army's case for possible
weaknesses and to consider the mediator's reaction to the presentations. As the
dispute to be arbitrated was solely whether or not removal was a justifiable
disciplinary response to Vasquez' offenses, it was also reasonable for O'Connor
to assess Vasquez as a witness with regard to the credibility of his asserted
remorse over his actions. Finally, although O'Connor did not mention it
specifically in the context of his reasons for withdrawing the grievance, I
note his testimony that the Army represented to him that it had additional
evidence of wrongdoing by Vasquez, and that it intended to use this evidence if
necessary to remove him again. This information would have suggested the
possible futility of contesting the original removal.

The credibility of all of O'Connor's assertions is, of course, in the
balance. So, too, is the credibility of Solano's denial that he instructed
O'Connor how to proceed or that he instructed Medina to inform Vasquez that his
arbitration depended on his dues payment. Ultimately, the credibility of all
three of these Union officials must be balanced against Vasquez' testimony that
Medina told him that she was so instructed, as well as the weight of Medina's
May 27 letter.

No one witness seemed inherently more credible than any other. There
was, of course, a crucial difference between Vasquez and Medina about one
conversation in the union office. The circumstances persuade me that if,
consistent with her letter but inconsistent with her testimonial recollection,
Medina did mention the arbitration to Vasquez, she said no more than what she
wrote in the letter, and did not tell Vasquez that she was relaying
instructions from Solano linking Vasquez' dues payments with his
arbitration.

The circumstances concerning the plausibility of the Unions'
explanation, as related above, constitute one set of factors. The General
Counsel, disputing the credibility of this explanation, urges a finding that
Solano's course of conduct with respect to Vasquez was infected by a bad motive
from the very beginning. Thus, it is argued that his imposition of the
requirement for "direct pay" members to pay their annual dues in advance was
aimed at Vasquez, "[i]n order to squeeze as much money [as] possible" from
him.

This argument is based in part on suggested inferences that (1) Vasquez
was the Local's only "direct pay active" member and (2) that Solano had taken
the trouble to inform himself of this. Each of these suggested inferences is at
least partly speculative. As to the first, the General Counsel points to their
being only one "direct pay active" member, in May and December 1993. The
assumption is that the sole member was Vasquez. I cannot be completely
satisfied that this is so. The record does not reveal whether or not Vasquez
continued paying dues after his March 1993 discharge and was carried on the
Local's records as a member from then until his February 1994 partial dues
payment. Further, I credit Medina that she had sent a letter to another "direct
pay" member (probably near the time of her May 1994 letter to Vasquez)
informing him or her of the new policy and requesting payment within 15 days.
However, other circumstantial evidence, principally Vasquez' credited testimony
that Medina called him and referred to him as a member not paying by payroll
deduction, persuades me that he probably was the sole "direct pay active"
member at the end of 1993.

Assuming that such an inference is warranted, the propriety of the
further inference that Solano actually went through the process of so
identifying Vasquez as such in his own mind is more difficult to determine.
Ultimately, however, I am not persuaded that Solano devised the new dues
payment policy to "squeeze as much money as possible" from Vasquez. The obvious
risks of carrying through such a plot (witness the instant case, for example)
so far outbalance the meager financial benefit to the Unions that I do not
believe the dues policy was so motivated.(9) Moreover, such a policy, if aimed at a member whose
continued payment of dues was known to be difficult because he was unemployed,
would hardly have served to encourage other bargaining unit employees to become
or remain members while they were still employed.

In the absence of such a plot, there remains the question of Medina's
credibility when she denied receiving instructions from Solano to link Vasquez'
dues payment with his arbitration and to so inform Vasquez. I credit her
denials and her testimony that the suggestion of a possible linkage, in her May
27 letter, was her own idea. If, contrary to her recollection, Medina also
linked dues with the arbitration in a conversation with Vasquez, he may well
have assumed that the instructions came from Solano. However, I think it more
likely that, as noted above, and consistent with the general tenor of Medina's
testimony, she said nothing to him that was more specific than the "potential"
for termination of the arbitration if he did not pay his dues. Whether she said
even that I am unable to determine, nor do I feel capable of determining
whether Vasquez believed he heard what he said he heard.(10)

Finding that Solano's denials are not contradicted by the phantom
admission by Medina to Vasquez concerning Solano's intentions, I credit these
denials and O'Connor's explanations for the decision that he, independently,
made. Counsel for the General Counsel offers some reasons why O'Connor might
rationally have decided otherwise, but has not succeeded, in my view, in
showing that the decision was based on other than a good-faith assessment of
the prospects for a successful conclusion to the arbitration. Nor do I find
that the presumably truthful testimony of Patrick Crotty, chief of
management-employee relations for the Army at Fort Carson, that O'Connor asked
to borrow the Vasquez videotape a few days before the hearing in this case,
warrants the discrediting of O'Connor's testimony that he watched the tape
before the scheduled arbitration hearing. And notwithstanding Vasquez'
admission of guilt, it would not have been unreasonable for O'Connor to fear
that the arbitrator would admit the tape into evidence and be influenced by
what it showed.

A suggestion by the General Counsel that O'Connor could have been more
specific in describing the information he relied on is no more convincing.
O'Connor was available for cross-examination. He made no discernible attempt to
evade any questions that tested his explanation of his decision.(11) Nor do any of O'Connor's actions
suggest that he was aware that his proceeding with the arbitration was
contingent on Vasquez' dues payment.

Conclusions

Based on the above findings, I conclude that the General Counsel has
not established a prima facie case that the Respondent Unions violated their
statutory duty under section 7114(a)(1) of the Statute. I further conclude that
they have not violated sections 7116(b)(1) or (8) by virtue of such
conduct.

Notwithstanding these conclusions, I find that Medina's May 27 letter
interfered with, restrained, or coerced Vasquez in the exercise of his right to
refrain from assisting Local 1345. The letter was on Local 1345's official
letterhead, signed by its treasurer, and gave Vasquez a reasonable basis to
fear that his failure to pay the remainder of his annual dues within 15 days
could result in the "termination of [his] arbitration case." In this respect,
the General Counsel's failure to establish that Medina had actual authority to
suggest such a connection does not absolve the Local. American Federation
of Government Employees, Local 916, AFL-CIO, 28 FLRA 988, 1001-12
(1987). It is sufficient that Vasquez could reasonably have drawn from its
contents the coercive inference that such a connection existed. See
American Federation of Government Employees, Local 987, Warner Robins,
Georgia, 35 FLRA 720, 724-25 (1990); American Federation of Government
Employees, Local 987, 35 FLRA 563, 570-72 (1990).

Further, as the Local was in trusteeship under the auspices of AFGE,
Medina also had apparent authority to speak for the trustee, AFGE's responsible
representative for managing Local 1345's affairs. Therefore, AFGE is jointly
responsible for the coercive effect of the letter. I find that Respondents
Local 1345 and AFGE have violated section 7116(b)(1) of the Statute by giving
an employee the impression that his failure to pay dues would jeopardize his
opportunity to have his grievance heard by the arbitrator.

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's
Rules and Regulations and section 7118 of the Statute, it is hereby ordered
that the American Federation of Government Employees, Local 1345, Fort
Carson, Colorado (in Trusteeship), and American Federation of Government
Employees, AFL-CIO, shall:

1. Cease and desist from:

(a) Stating or implying that failure to pay dues or maintain union
membership will be a factor in determining whether arbitration of an employee's
grievance will proceed.

(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:

(a) Post at their respective business offices, in normal meeting
places, and at all other places where notices to members and bargaining unit
employees at Fort Carson, Colorado, are customarily posted, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed on behalf of
American Federation of Government Employees, Local 1345, by its Trustee, and on
behalf of American Federation of Government Employees, AFL-CIO, by its National
Vice President, 13th District, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all bulletin
boards and other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.

(b) Submit appropriate signed copies of such notices to the Commanding
Officer of Fort Carson for posting in conspicuous places where unit employees
are located, where they shall be maintained for a period of 60 consecutive days
from the date of posting.

(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the Denver Region, 1244 Speer
Boulevard, Suite 100, Denver, Colorado 80204-3581, in writing, within 30 days
from the date of this Order, as to what steps have been taken to comply.

IT IS FURTHER ORDERED that all remaining allegations of the complaint
are dismissed.

Issued, Washington, DC, June 22, 1995

_________________________JESSE ETELSON Administrative Law
Judge

NOTICE TO ALL MEMBERS AND EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY

AND TO EFFECTUATE THE POLICIES OF
THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE

WE HEREBY NOTIFY OUR MEMBERS AND EMPLOYEES
THAT:

WE WILL NOT state or imply that failure to pay dues or
maintain union membership will be a factor in determining whether arbitration
of an employee's grievance will proceed

WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.

American Federation of Government Employees,
Local 1345

Date:____________ By:___________________________

(Signature)
(Title)

American Federation of Government Employees,
AFL-CIO

Date:_____________ By:_________________________

(Signature)
(Title)

This Notice must remain posted for 60 consecutive days from
the date of posting and must not be altered, defaced or covered by any other
material.

If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Denver Region,
1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, and whose
telephone number is: (303) 844-5224.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

Authority's Footnotes Follow:

1. The Respondents are the American
Federation of Government Employees (AFGE or the National Union) and AFGE
Local 1345 (the Local Union).

2. The Judge also found that the
Respondents committed the independent violation of section 7116(b)(1) alleged
in the complaint by sending the grievant a letter indicating that the
arbitration of his grievance would be terminated unless he paid all of his back
dues. No exceptions were filed to this finding. We adopt without precedential
significance those findings to which no exceptions were filed, pursuant to
section 2423.41(a) of the Authority's Regulations. This regulatory provision,
which concerns the Authority's action on judges' decisions, was amended in
1997, and was previously contained in 5 C.F.R. § 2423.29. As the
amended regulation applies to all ULP complaints pending after October 1,
1997, the amended regulation is applicable. See 62 Fed. Reg. 40922,
46175 (1997).

4. The term "mixed motive" is often
used interchangeably with the terms "dual motive" and "legitimate motivation."
In a "mixed motive" case, both lawful and unlawful reasons (motives) for the
respondent's actions have been established. This differs from a "pretext" case.
A "pretext" case involves the finding that the proffered, lawful reason for
respondent's actions did not, in fact, motivate the respondent, and that
instead, the respondent's acts were motivated by considerations deemed unlawful
under applicable law. SeeLetterkenny, 35 FLRA
at 119-20. In Midder, the court stated that the distinction between
these types of cases may be somewhat blurred, but because that case dealt only
with "mixed motive" the court did not elucidate any distinctions. Id.,
slip op. at 6 n.6.

The Administrative Law Judge shall receive evidence and inquire fully
into the relevant and material facts concerning the matters that are the
subject of the hearing. The Administrative Law Judge may exclude any evidence
that is immaterial, irrelevant, unduly repetitious, or customarily privileged.
Rules of evidence shall not be strictly followed.

ALJ's Footnotes Follow:

1. As explained in the text of this
decision, this party is substituted for American Federation of Government
Employees, 13th District, Lakewood, Colorado (Trustee of American Federation of
Government Employees, Local 1345, by and through the Office of National
Vice-President), one of the originally named Respondents.

2. Statements of fact in this section
and recited without attribution are, unless indicated otherwise, those I deem
to be undisputed. Credibility resolutions will be resolved separately.

3. Local 1345 membership reports for
May and December 1993 show that during each of those months it had one "direct
pay active" and eight "direct pay retired" members.

4. On placing the Local in trusteeship,
AFGE's national president removed all of its officers. Solano appointed Medina,
who had served as treasurer for about six months, but no other former officers,
to resume her position.

6. Counsel for the General Counsel
implies that Medina's testimony regarding the other letter is suspect, noting
that she did not have a copy of that letter available at the hearing. However,
Medina was the General Counsel's witness, albeit a reluctant one. It was not
shown that she had been either asked or required to bring a copy of the letter
with her.

7. During a pre-removal interview
with representatives of management and a union representative (not O'Connor),
as summarized in a memorandum the accuracy of which Vasquez vouched for in his
testimony, Vasquez had asserted that he had witnessed "worse abuses" than his
and that "nothing was done to those perpetrators."

8. O'Connor also testified that the
agency had informed him that it had developed more evidence, and that if
Vasquez was taken back it intended to remove him again the next day.

9. Such a plot would have had dubious
potential for the Unions even from a strictly financial viewpoint. Had Vasquez
paid his annual dues and the Unions proceeded to arbitration and lost, the cost
of the arbitration would have far exceeded his dues and he, no longer a
bargaining unit employee, would have been unlikely to renew his membership in
future years. Had arbitration proceeded and resulted in Vasquez' reinstatement,
the Unions could almost be assured of his continuation as a loyal dues-paying
member. Only if Solano plotted from the beginning to collect Vasquez' dues and
still not proceed to arbitration would the Unions have
benefited financially.

10. Counsel for the General Counsel
argues that Medina should be discredited because it is unlikely that, as Medina
testified, Vasquez would have come to the union office in 1994 to pay his dues
and not have mentioned to her why he was doing so. I have made no determination
as to whether the arbitration was mentioned. However, I see no reason to
suppose that either Vasquez or Medina would have found it necessary to bring up
the arbitration in 1994 in connection with the dues payments that Vasquez was
either continuing or resuming. For one thing, Vasquez would likely have
presumed that Medina already knew about the arbitration. For another, Vasquez
testified that his dues payments were pursuant to Medina's request.

11. O'Connor cannot be faulted for
failing to volunteer what the mediator told him in private. O'Connor's
testimony presents a clear implication of the drift of these comments, and he
was not asked to be more specific. Therefore I need not reach the interesting
question of whether the mediator's actual comments are privileged.